Attorney General Olens Supports Right to Use Criminal Background Checks

July 24, 2013

Attorney General Sam Olens announced today that he and eight other attorneys general have sent a letter to the U.S. Equal Opportunity Commission (EEOC) to express concern over two recent lawsuits filed by the commission dealing with employers’ use of criminal background checks. The EEOC, for the first time, claims that the employers’ use of criminal background checks constitutes unlawful discrimination against potential employees under federal law.

In the letter, the attorneys general say that the lawsuits, filed against Dollar General and BMW Manufacturing Co. LLC, are “misguided and a quintessential example of gross federal overreach.” The letter urges Commission Chair Jacqueline Berrien and the other four Commissioners to reconsider the lawsuits. The attorneys general also ask that the EEOC revise the agency guidance driving the lawsuits, which asserts that using generally applicable criminal background checks as a bright-line screening tool in the hiring process will often violate Title VII of the Civil Rights Act of 1964.

“The EEOC has gone well beyond the confines of the law. Businesses may decide for a variety of legitimate reasons that it is not in their best interest to hire people who have been convicted of certain — or any — crimes,” Olens said. “At a time when Georgia businesses are already saddled with a multitude of burdensome regulations, the last thing we need is another federal regulation imposing even more unnecessary requirements.”

Title VII prohibits intentional discrimination (known as “disparate treatment”) as well as, in some cases, practices that are not intended to discriminate but have a disproportionally adverse effect on minorities (known as “disparate impact”). In published agency guidance and in the lawsuits, the EEOC argues that using criminal background checks as a bright-line screening tool in the hiring process will in many cases violate the disparate impact prohibition.

The attorneys general disagree that race discrimination is the EEOC’s actual concern and believe the agency simply seeks to expand Title VII protection to former criminals—something Congress has never approved.

“It defies common sense to suggest that a bright-line criminal conviction screen will only rarely be ‘job related’ and ‘consistent with business necessity.’ An employer may have any number of business-driven reasons for not wanting to hire individuals who have been convicted of rape, assault, child abuse, weapons violations, or murder—all crimes specifically mentioned in the complaints,” the attorneys general wrote. “No matter how unfair a bright-line criminal background check might seem to some, it is not your agency’s role to expand the protections of Title VII under the pretext of preventing racial discrimination.”

Other states to sign on to the letter were Alabama, Colorado, Kansas, Montana, Nebraska, South Carolina West Virginia and Utah.